APPEAL ALLOWED BECAUSE OF A SERIOUS PROCEDURAL IRREGULARITY: IF YOU WANT SUMMARY JUDGMENT THEN MAKE SURE YOU HAVE APPLIED FOR IT

On the 18th April 2018 I am, with a number of my colleagues from Hardwicke, giving a talk on “Applications for Defendants”*. The judgment this week in St Clair v King & Anor [2018] EWHC 682 (Ch) may well feature. It is an unusual case where a judgment granting summary judgment was overturned on appeal on the grounds of a serious procedural irregularity. The key factor was that that defendant had not, in fact, applied for summary judgment. Nor had the defendant complied with the rules for applying for summary judgment. The case also raises issues about the late service of skeleton arguments, particularly on litigants in person.

THE CASE

The claimant is a litigant in person bringing an action disputing the validity of a will. The defendant made an application to strike out the claim on the grounds that the statement of case disclosed no reasonable grounds for bringing the claim and/or it was an abuse of the court’s process; and/or was not compliant with CPR r16.4(1)(a).

The application was served on the claimant on the 11th January 2017. Counsel for the defendant was instructed on the on the 17th January 2017, the day before the hearing. Counsel produced a skeleton argument that day and it was given to the claimant as she went into court. The hearing then lasted from 11.00 pm to 5.00 pm. Summary judgment was given on the application.

THE APPEAL

The procedural irregularity found by the judge, Mr Andrew Sutcliffe QC, on appeal was that the defendant applied to strike out the action, yet the application proceeded as if it were an application for summary judgment. This was an important distinction.

In my judgment, it is crucial to the outcome of this procedural ground of appeal that the Master decided to proceed on the basis that what he had before him was an application for summary judgment under Rule 24.2(a)(i) and (b), when what was in fact before him was an application to strike out under Rule 3.4(2) alleging that the Claimant’s statement of case disclosed no reasonable grounds for bringing the claim and/or that it was an abuse of process.

In appropriate circumstances the court has a discretion to treat an application under Rule 3.4 as including an application for summary judgment under CPR Part 24. I was referred to the note at paragraph 3.4.6 in the 2017 White Book and to S v Gloucestershire County Council [2000] 3 All ER 346 at pages 372c-373f, Taylor v Midland Bank Trust Co Ltd [2002] WTLR 95 at pages 107C-108H and 113E-G, and Moroney v Anglo-European College of Chiropractice [2009] EWCA Civ 1560. However, it is clear that in none of these cases was there any procedural unfairness to the claimants in proceeding in this way because they had had a full opportunity to meet the application for summary judgment. In other cases the court has refused to grant summary judgment in the absence of a formal application, particularly if the party is left in doubt that he is facing an application for summary judgment. In Ministry of Defence v AB and others [2010] EWCA Civ 1317, the Court of Appeal indicated that it would have set aside a summary judgment made without formal notice (in fact it did not have to do so because, although the application was allowed to be made, it was dismissed) on the grounds that it was not appropriate on the facts of that case to place on the judge the decision as to whether or not to exercise the jurisdiction under CPR Part 24 of his own motion.

There are procedural requirements which should be complied with when making an application for summary judgment. CPR 24.4(3) stipulates that a respondent must be given at least 14 days’ notice of a summary judgment hearing. It is obvious that this procedural requirement was not complied with in this case. Mr Acton complains that the consequences of allowing the application to proceed as one for summary judgment were not properly or fairly explained to the Claimant. He submits that neither the Defendants nor the Master clearly explained to the Claimant that the court would be proceeding to determine the Defendants’ application under Part 24 as opposed to Rule 3.4 even though no Part 24 application had been issued and no application to amend the existing application was being made. He further submits that in circumstances where he was dealing with a litigant in person it was incumbent upon the Master to explain to the Claimant that he intended to consider the application solely on the basis of the documents in the bundle lodged with the court in order to decide whether her claims had any realistic prospect of success and that if she wished to rely on any further documents or evidence, she had a right to file such evidence in reply to a summary judgment application under Rule 24.4(3).

The Defendants say that it was or ought to have been clear to the Claimant from their strike out application that they intended to rely on evidence and documents, such as the Larke v Nugus papers which were to be included in the bundle for the hearing on 18 January 2017 pursuant to the Master’s directions made on 11 November 2016. They say that their counsel’s written submissions filed with the court on the morning of the hearing on 18 January 2017 focused, in part, on whether the pursued claims and the fraud claim had a real prospect of success in light of the documentary evidence. Moreover, they say that the Master made clear to the Claimant during her submissions at the hearing itself that she needed to satisfy him that those claims had realistic prospects of success. However, I am not persuaded that any of these matters enabled the Claimant to gain a proper appreciation of the fact that she was facing an application for summary judgment which would involve the court considering the evidence and documents in detail at the hearing and reaching a conclusion as to whether on the basis of that evidence and those documents her claims had a realistic prospect of success. In any event, the Defendants’ reliance on what was said in their skeleton handed to the Claimant as the hearing commenced and on what the Master said to her in the course of the hearing does not really assist them unless they can demonstrate that the consequences of the alternative (summary judgment) procedure they were inviting the court to adopt were properly explained to the Claimant and that, having been given such explanation, she agreed to proceed.

I asked Ms Hargreaves whether the Defendants made any application to the Master at the hearing to treat their strike out application as including a summary judgment application. Ms Hargreaves said that there was some discussion about summary judgment and strike out principles at the commencement of the hearing and that both her skeleton and the Master’s judgment proceeded on the basis that an application for summary judgment was being made. However it seems clear that Ms Hargreaves did not formally ask the Master to treat the strike out application as including a summary judgment application nor did she remind him of the procedural requirements or refer him to the authorities which consider the circumstances in which it was appropriate to permit the Defendants to make their application under rule 24.2 as well as rule 3.4.

So I proceed on the basis that there was no express oral application made to the Master at the hearing asking him to treat the strike out application as a summary judgment application. Nor does the Master say in his judgment that he was exercising his discretion to proceed on that basis. Nevertheless, in relation to the undue influence claim, it is clear that the Master approached the matter as if an application for summary judgment had been made. In paragraph 16 of his judgment, after referring to the fact that he was conscious he was not conducting a mini-trial, he concluded that the case put forward by the Claimant amounted “in the final analysis to no more than tittle tattle, whereas the evidence of the solicitor in relation to the drawing of the Wills and the history of the testatrix’s state of mind and independence are well made out in the evidence”. On that basis, he concluded that the undue influence claim did not have “any realistic prospect of success”. In paragraph 20 of his judgment, he reached the same conclusion in relation to the question of testamentary capacity. Having again stated that he was conscious of the need to avoid making decisions on contested questions of fact, his conclusion was that “the allegations as to want of capacity do not have any realistic prospect of succeeding at trial”. Equally in paragraph 21 of his judgment, having referred to the allegation that the Deceased “was in fact illiterate, something she was embarrassed about”, he stated “this does not in my view have any realistic prospect of success because it is not credible in the face of the compelling documentary evidence which is before the court”.

Ms Hargreaves submitted that it was within the Master’s case management discretion to proceed in this way. However, I have difficulty accepting this in circumstances where no application was made to the Master to treat the strike out application before him as one seeking summary judgment and the Master did not in his judgment expressly consider the fairness to the Claimant of allowing a strike out application to be treated as a summary judgment application at the hearing itself and dispensing with the procedural requirements contained in CPR Part 24. It was not suggested by Ms Hargreaves that the distinction between a strike out application and a summary judgment application was explained to the Claimant at the hearing or that she was given an opportunity to seek an adjournment as a result of the application being made on a different basis. It seems that what the Master did was to apply a test on the basis of an application not before him in circumstances where he had neither explicitly exercised his discretion to treat the application before him as including an application for summary judgment nor explained to the Claimant the consequences of the course he proposed to take. The fact that the Claimant was a litigant in person cannot be ignored. She was in my view entitled to have proper notice of the fact that the Defendants were applying for summary judgment.

For these reasons, I accept Mr Acton’s submission that the Master’s decision to proceed on the basis that the Defendants had made a summary judgment application amounted to a serious procedural irregularity, serious in the sense that it was not trivial or of no real significance. Given that the Defendants’ application to strike out had only been issued some 3 working days prior to the hearing, it is likely that had the procedural and substantive consequences of the Defendants making a summary judgment application been explained to the Claimant at the hearing, she would have sought and been granted an adjournment in order to seek professional advice and her claim would thereafter have been properly formulated and argued in the manner that has occurred on this appeal.”

POINTS TO NOTE

An application for summary judgment can be made alongside an application to strike out. However, as the judgment shows, the requirements for summary judgment are clear and include a 14 day notice period.

The Chancery Guide requires a skeleton to be served by 10am the day before the hearing. If counsel received the papers the day before the hearing (as happened in this case) this makes compliance impossible.

LITIGANTS IN PERSON

If you are making an application involving a litigant in person it is prudent to have a look at the guidance given by Mr Justice Peter Jackson in Re B (Litigants in Person: Timely Service of Documents) [2016] EWHC 2365 (Fam). The courts are anxious to avoid litigants in person being served with skeleton arguments at the door of the court. It is prudent to serve a copy of the skeleton (and copies of any authorities relied on in support) well in advance of the hearing.

This judgment, published with the approval of the President of the Family Division, arises from a recent final hearing in a child abduction case in which legal documents – counsel’s position statement (14 pages) and four law reports (100 pages) – were given at the door of the court to a non-English-speaking litigant in person (LIP). This is unfortunately not an unusual occurrence, and it calls for a remedy.

Summary

Where one party is represented and the other is a LIP, the court should normally direct as a matter of course that the Practice Direction documents under PD27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email, should be specified”

*Details will follow in early course. The talk will be at Hardwicke in Lincoln’s Inn.